Williams v. St. Louis Public Service Co.

• Decision Date: 10 November 1952
• Docket Number: No. 43123,43123
• Citation: 363 Mo. 625,253 S.W.2d 97
• Parties: WILLIAMS v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Supreme Court

Page 97

253 S.W.2d 97

363 Mo. 625

WILLIAMS v. ST. LOUIS PUBLIC SERVICE CO.

No. 43123.

Supreme Court of Missouri, en Banc.

Nov. 10, 1952.

Rehearing Denied Dec. 8, 1952.

Salkey & Jones and Carroll J. Donohue, St. Louis, for appellant.

Barnhart & Wood, C. V. Barnhart and Marvin S. Wood, St. Louis, for respondent.

DALTON, Judge.

This is an action for damages for personal injuries. Plaintiff was a passenger in one of defendants streetcars. She fell and sustained fractures of the bones of her right arm and wrist as the streetcar moved along East Hodiamont Avenue in the city of St. Louis. The cause was submitted to a jury under the res ipsa loquitur doctrine. Verdict and judgment were for plaintiff for $4,950 and defendant took an appeal to the St. Louis Court of Appeals. That court ordered the judgment reversed and the cause remanded on the ground that the doctrine of res ipsa loquitur was not applicable under the evidence and that hearsay evidence had been improperly admitted. Williams v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 659. The cause has been transferred to this court and we shall review the record as on original appeal. Art. V, Sec. 10, Const. or Mo.1945, V.A.M.S.

Error is assigned (1) on the giving of Instructions 1 and 5; (2) on the admission of certain evidence; and (3) on an alleged excessive verdict. Instruction 1 submitted a finding under the res ipsa loquitur doctrine that as plaintiff was walking to the rear of the car '* * * defendant's streetcar was started in motion and that thereafter it jerked or lurched in an extraordinary and unusual manner and that as a direct result thereof plaintiff was thrown forward and to the floor of said streetcar and thereby injured, * * *.'

Appellant contends the court erred in 'submitting plaintiff's case under the res ipsa loquitur doctrine for the reason that the plaintiff's pleadings and evidence showed the alleged specific negligence of defendant which caused her injury and plaintiff's case should have been submitted to the jury, if at all, on such specific negligence.'

The petition charged that while plaintiff was walking to the rear of the streetcar 'defendant negligently caused and permitted said streetcar to suddenly check its speed and to receive an extraordinary, unusual jerk, lurch and shock whereby plaintiff was caused to be thrown to the floor thereof with much force and violence and to sustain the serious and permanent injuries * * *.'

Appellant says 'the plaintiff's petition did not sound in general negligence' but alleged specific negligence in permitting the streetcar 'to suddenly check its speed.' It is apparent that appellant has seized upon and has emphasized only a part of the allegation. It has divided the sentence, ignored part of its content and failed to consider the allegation of negligence as a whole as it appears in the petition. The allegation of negligence is not limited to the operation of the streetcar or to an act of its operator. Considered as a whole the allegation sufficiently charges general negligence under the res ipsa loquitur doctrine. It sufficiently charges 'an unusual occurrence with attending circumstances, the physical cause of plaintiff's injury, sufficient to justify an inference of some kind of negligence for which defendant should be held responsible, but insufficient to point to the specific negligent act or omission, the legal cause of the injury.' Boulos v. Kansas City Public Service Co., 359 Mo. 763, 223 S.W.2d 446, 450.

Did plaintiff's evidence disclose the specific negligence which caused her injury? Plaintiff testified: 'Well, I got on the car and I paid my fare and started back to take a seat. On my way back, when the car started up and by the time I got middleways between the front door and the exit door, all of a sudden the car gave a jerk and it jerked me back and it threw me flat out on my arm like this (illustrating).

'Q. Did you fall backwards or forwards? A. Forwards. * * * I just fell flat out on the floor in the aisle; I did, yes.

'Q. You were walking at the time that happened? A. Yes, sir.

'Q. And the streetcar was in motion at that time? A. It was.

'Q. Is that right? A. It was.

'Q. You don't know what the traffic conditions were outside, or anything about that. A. No; I wasn't looking at that. * * * I didn't realize my arm was broke until we had rode from where I had fell almost to Hamilton Avenue. My arm begin to swell up and pain.'

She said that the streetcar had started up and proceeded about the length of a couple of automobiles, and there was a jerk, 'just a hard jerk: throwed me out of balance, off my feet. * * * The way I noticed it it seemed to slow and give a sudden jerk.'

Plaintiff's witness, Jean Cobble, a passenger on the streetcar when plaintiff was injured, testified:

'Q. Where abouts did you sit on the streetcar? A. On the lefthand side about the center of the car.

'Q. Did you see anything unusual occur on that streetcar about the time it left the Horton Place stop? A. Well, I looked down and there was a colored woman--I didn't see her fall, but her arm was still in motion. I mean I saw her arm before it stopped moving. Her arm was outstretched. * * * Well, her arm was right in front of me.

'Q. Did you notice anything about the movement or the motion of the streetcar at about the same time? A. Yes, there was a slight jerk.

'The Court: How is that? The Witness: There was a jerk.'

On cross-examination this witness testified: '* * * He already started up and then she paid her fare. We had started up and she put her money in her purse, and then she started to walk on back and then I looked away; * * *

'Q. It was after that that she fell? A. She fell just then, because I looked back in a second and she was throwed off her feet. * * *

'Q. Had you ever been on a streetcar that moved like that before? A. Yes.

'Q. Does it happen quite often on that Hodiamont streetcar line over there? A. Well, I wouldn't say quite often; occasionally, it does. * * *

'Q. Was there anything different in the manner in which that streetcar moved on this particular day than there was on the other days you ride? A. Not especially.'

On re-cross examination the witness testified:

'Q. * * * Did you tell the police officers that the streetcar jerked because you couldn't see any other reason why she fell? Was that the basis for saying that? A. No, that wasn't it exactly. I will tell you about that jerk. It wasn't like this: We were just going along and the streetcar gave a sudden jerk; * * *. We were going across, what street I don't remember, and he put on the brakes--anyhow, he started slowing down for this street, because there was a car coming from the left side. He put on his brakes and he didn't totally stop, and then he went on again rather fast.

'Q. In other words, this jerk that you noticed took place at some intersection, is that right, an intersection with another street? A. It started, yes. * * *

'Q. You say he put on the brakes and slowed the streetcar down a little bit but did not completely stop. You say that was for an automobile. A. Yes. * * *

'Q. The streetcar stopped and let the automobile go on? A. He didn't stop.

'Q. He slowed down to let the automobile go on? A. Well, the lady goes and gets on and he starts up and then we come to this street and he sort of slows down. That was normal. And then as soon as the automobile went on he speeded up. * * *

'Q. * * * this movement you described of the streetcar, happens quite often? A. I wouldn't say it is exactly the same.

'Q. * * * have you felt the same motion on a streetcar before or since this happened, slowing down and starting up again? A. Well, this was a little more just a little more heavy than usual; a little faster--quicker. * * *

'Q. One further question: I believe you said when the streetcar was slowing down at that point, then it started forward and that is when the jerk occurred? A. Yes, sir.'

It is well settled that, although a petition charges general negligence, if the evidence shows the precise and specific negligence, which caused the injury, it is error to submit the case by instructions on general negligence. Williams v. St. Louis-San Francisco R. Co., 337 Mo. 667, 85 S.W.2d 624, 636; Belding v. St. Louis Public Service Co., En Banc, 358 Mo. 491, 215 S.W.2d 506, 510. Appellant insists that in this case plaintiff by her own evidence has shown the specific negligence which purportedly caused her injury. Appellant cites Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825; Powell v. St. Joseph Ry., Lt., Heat & Power Co., 336 Mo. 1016, 81 S.W.2d 957; Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599. Appellant also cites Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767, 769 (1) and other cases where the words 'if the evidence tends to prove specific negligence,' are used. (Italics ours.)

It has been said: 'a plaintiff can neither definitely state nor show that his injury was caused in a certain way and then allow the jury to speculate on whether it was caused in some other way.' Sanders v. City of Carthage, 330 Mo. 844, 51 S.W.2d 529, 531; Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825, 830. 'When * * * the plaintiff pleads general negligence and by the pleading invokes the aid of the res ipsa loquitur doctrine, he does not lose or waive the benefit thereof and the right to rely thereon in the submission of the case to the jury, by introducing evidence tending to show specifically the cause of the accident if by the evidence the cause is still left and remains in doubt or is not clearly shown, but where the real or precise cause is definitely shown, and is not left in doubt, 'there is no occasion or room for the' presumption or inference which the res ipsa rule affords. 'The plaintiff is bound by his evidence in a res ipsa case just as he would be in any ordinary negligence action and cannot in effect say to the...